Bombay High Court: A.K. Menon, J., addressed a matter wherein an arrangement was executed between the parties for taking care of the elderly mother in light of a conditional gift deed.
The instant application was filed by the plaintiffs praying for urgent relief. Plaintiff 1 is not a resident of India and plaintiff 2 being his mother, was being looked after by the defendant under an arrangement between them.
As a part of the above-stated arrangement, plaintiff 1 contended that defendant executed an undertaking by which the defendant agreed and undertook to look after plaintiff 2 i.e. the elderly mother of plaintiff 1.
A Gift Deed was also executed on the same date in favour of the defendant when the above-stated undertaking was executed by the defendant.
The subject matter of the said Gift Deed was a flat situated in Mumbai in a co-operative housing society. Plaintiffs contended that the gift was conditional upon compliance with the undertaking and hence sought the gift deed needed to be revoked as the defendant had declined to honour the undertaking.
The reason for seeking urgent ad-interim relief is the plaintiffs’ apprehension that the defendant may dispose of the said flat to the detriment of the plaintiffs since the plaintiffs sought to revoke the said gift deed.
Prima facie, the documents stated that the gift deed was indeed executed and so was the undertaking.
Further, there was no satisfactory explanation as to why the execution of the undertaking was denied since it appears that the undertaking was initially shared by the defendant himself in the draft form by e-mail, copy of which was found in the additional compilation of documents filed by the plaintiffs.
Hence, prima facie it appeared that there was a link between the undertaking, obligation therein and the gift deed.
Further, it was submitted that the gift deed purported to gift the flat described therein out of love and affection to the defendant. It was contended on behalf of the defendant by Mr Petkar that even under Section 126 of the Transfer of Property Act, 1882, such a gift deed cannot be revoked and that no case is made out for revocation even assuming that there was an undertaking in place.
In the Court’s opinion, the denial of the execution of the undertaking is suspect and will have to be examined in greater detail. If the defendant had in fact not executed the undertaking, there was no reason for him to have sent those undertaking in draft form and in PDF form to plaintiff 1.
Hence, prima facie case was made out for grant of an ad-interim relief. Bench directed the co-operative housing society housing the suit flat shall make note of this injunction and shall not permit the transfer of the flat till further orders.
Flat in question is to be protected from alienation.[Edward D’Cunha v. Mark Madhu Suvarna, 2020 SCC OnLine Bom 3083, decided on 23-11-2020]
Advocates who appeared in the matter:
Rashmin Khandekar, i/by Taurus Legal, for the Applicants-Original Plaintiffs.
Akshay Petkar, with Aniket Malu, for the Defendant.
